Pinheiro Principles and the Voluntary Guidelines

The 2005 Pinheiro Principles were the first summative statement regarding property rights in post-conflict settings.  They were the result of a UN Sub-Commission tasked with applying human rights law to post-conflict housing, land, and property issues for refugees and internally displaced people.   In arriving at the Pinheiro Principles the UN Sub-Commission on the Promotion and Protection of Human Rights consulted with legal experts, civil society organizations and states.  They were helpful, but imperfect, as these things often are.  They have been challenged in terms of their legal foundations and I have reservations about their applicability in situations with customary law.

The Voluntary Guidelines on the Responsible Governance of Tenure, actually have a longer title yet, but are most often just referred to as ‘The Voluntary Guidelines”.   They were adopted in 2012 after a remarkable consultative process lead by the FAO Committee on World Food Security.  Negotiations over the guidelines occurred in 2011 and 2012, as the world was still reeling from the 2008 Food Price Crisis.  The Voluntary Guidelines are notable for bringing together food sovereignty advocates in over 30 civil society organizations and the 96 UN member states that negotiated the agreement.    They are broader than the Pinheiro Principles as they address land governance in all contexts, not just post-conflict.  They also address the concerns of people such as myself, interested in seeing customary law directly addressed.

The Voluntary What?

However, there is a major problem with the Voluntary Guidelines.  Apart from those directly involved in the consultations, and perhaps also some of my students, no one seems to know they exist.  Of course I exaggerate, but not too much.  In the past month I have reviewed two academic papers by very smart people writing on land restitution issues, who seemingly have never heard of the Voluntary Guidelines.  Why?  How could it be that people are not aware of the Voluntary Guidelines in spite of the remarkable effort and extensive consultation that went into developing them?

Here are my three ideas about the causes of this ignorance.

  • Voluntary is interpreted as irrelevant. This isn’t true.  The Voluntary Guidelines are no more or less enforceable than the Pinheiro Principles.  It is all ‘soft’ international law and therefore has no specific enforcement mechanism, but is meant to guide organizations and governments in making decisions.

 

  • Post-conflict issues are buried in Section 25 after multiple preceding sections addressing riveting issues such as valuation, taxation and spatial planning. Personally, I do find spatial planning compelling, but I realize that not everyone agrees with me.

 

  • The focus in the Voluntary Guidelines on respecting marginalized people and ensuring food security for all, means that they are more complex than the Pinheiro Principles, which are very straightforward and easy to understand. By way of example, here is the way that property restitution is discussed in each.

 

Pinheiro Principle 2 The right to housing and property restitution

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/ or property that is factually impossible to restore as determined by an independent, impartial tribunal.

 

And the equivalent passage in the Voluntary Guidelines

VG 25.5 In situations of conflicts, whenever possible or when conflicts cease, States and other parties should ensure that tenure problems are addressed in ways that contribute to gender equality and support durable solutions for those affected. Where restitution is possible and, as appropriate, with the assistance of UNHCR and other relevant agencies, refugees and displaced persons should be assisted in voluntarily, safely and with dignity returning to their place of origin, in line with applicable international standards. Procedures for restitution, rehabilitation and reparation should be nondiscriminatory, gender sensitive and widely publicized, and claims for restitution should be processed promptly. Procedures for restitution of tenure rights of indigenous peoples and other communities with customary tenure systems should provide for the use of traditional sources of information.

25.6 Where restitution is not possible, the provision of secure access to alternative land, fisheries and forests and livelihoods for refugees and displaced persons should be negotiated with host communities and other relevant parties to ensure that the resettlement does not jeopardize the livelihoods of others. Special procedures should, where possible, provide the vulnerable, including widows and orphans, with secure access to land, fisheries and forests

You get the picture.

This is all unfortunate.  The Voluntary Guidelines is an important document that is sophisticated in its understanding of tenure systems around the world and prioritizes people and food production.  This is good and necessary, albeit complex.

Property and Return Migration

My most recent research has been on post-conflict return migration, specifically the question of who comes back to their homes and community after violence forces them to leave.  When I started the project  I was solely focused on land issues.  I wanted to know whether property restitution mattered in people’s decisions to return home.  The deeper I got into research on the topic (in Liberia, Uganda and Kosovo) the more I realized that property restitution was only one piece of a very complicated decision –making process that has as much to do with household needs and characteristics, length of displacement and opportunities elsewhere, as with property restitution.

Customary Law

Many places around the world allocate land on the basis of customary law –  a system of rules in which people typically have a claim to land rights because they are members of a group.  For example, because I am Acholi and my family is from northern Uganda, I am a member of a particular lineage with a right to the land that lineage ‘owns’ in northern Uganda.  The specific land I can claim will be determined by lineage or community leaders.  My property right comes from my identity rather than from a deed or title.  In most cases customary law is not written and property rights are not formalized (although that is increasingly changing).

Customary Land Tenure after Conflict

The average length of time people are displaced as a result of violent conflict is 17 years (a depressing statistic!).  Lots of things change in 17 years including the composition of households as family members are born, die, emigrate, etc.   Community leaders also change and new leaders do not necessarily know or remember who lived where or had claim to what land.

Laura Meitzner Yoder and I address some of the challenges of return migration to areas with customary land in the most recent issue of Development and Change.    While I have research experience in Sub-Saharan Africa, Laura has worked and studied land in Timor-Leste.  We combined our expertise to address the role of customary land in post-conflict migration.  We address the different ways in which post-conflict return can happen (synchronized or punctuated) and also the disconnect between the rights one can claim under customary law (a right to some part of the lineage land) and the rights guaranteed in international public policy on return migration (a right to a specific piece of land or home from which one was displaced).

Customary law creates a different context for property restitution in post-conflict settings.  It can be more flexible than formalized land holding, but it is highly dependent on the leaders who interpret and enforce it.

Kosovo and Border Demarcation

In March an international commission released its report on the border demarcation between Kosovo and Montenegro and declared it to be accurate and consistent with the findings of the Kosovo Cadastral Agency. Kosovo opposition parties Vetëvendosje and the Alliance for the Future of Kosovo objected to the findings, decrying the documentation flawed and process rigged.  They believe that the border lies elsewhere.  This would all just be entertaining political theater if the stakes were not so high.

The border demarcation issue has been one of the justifications for the violent anti-government demonstrations that have plagued Kosovo in the first part of 2016 and the nearly 6 month interruption in the functioning of the government.  In other countries, this sort of post-succession border demarcation conflict has erupted into war.  In 1998 Ethiopia and Eritrea began a two-year border war resulting in tens of thousands of deaths over a tiny triangle of land with a single small town.

At issue in Kosovo is whether the boundary with Montenegro is nearer the foot of the mountains dividing the two countries, or higher up along the ridgeline.  Multiple experts have been tasked with the verification of the border, and they agree that the border between Montenegro and Kosovo appropriately follows the municipal boundaries set by the 1974 Yugoslav Constitution.  With Kosovo’s independence in 2008, these municipal boundaries have now become a national border and need to be recognized as such.

The outcome of this conflict is more significant than the value of the land.  Border demarcation is a condition for a visa liberalization agreement with the EU; an agreement that would allow Kosovo’s citizens to travel more freely outside the country for medical care, education and business.

Kosovo’s citizens deserve both visa liberalization and a functioning government.  While the opposition has been busy organizing demonstrations and setting off tear gas in the assembly to prevent votes, the economy of the country stagnates and 40,000 young people each year finish their studies with little chance of finding meaningful work.  Not surprisingly, illegal migration from Kosovo to other parts of Europe has been a problem as young people look for work they cannot find at home.  Visa liberalization and the opportunity to join the EU at some point in the future are beacons of hope for this country challenged by a post-war economy and the transition from a socialist Yugoslav regime.

Nationalist sentiment propelled Kosovo’s ten-year pacifist struggle for autonomy and its short war for independence.  The idea of territorial loss, when the land itself has been hard fought for, is a difficult idea for a new state to stomach.  This is part of the reason why Ethiopia and Eritrea were willing to spend millions of dollars and the lives of their countrymen on an insignificant piece of scrubland.  The border demarcation issue in Kosovo has become so volatile because independence came at a high price.

As the opposition parties return to the assembly, they would do well to remember that a country is made up of people as well as territory.